Land Repairs

At issue in Teitelbaum v. Woodbury Village Condo-minium II was responsibility for repairs to land beneath a condominium unit. The dispute was between the board of managers and a unit-owner who had repaired a concrete slab crack. The court held the unit-owner responsible.

The underlying cause of action was one to recover money which Teitelbaum spent to repair a crack in the concrete slab of his home. This action was begun on or about September 24, 2001. Teitelbaum alleged several causes of action: (a) breach of contract, (b) breach of fiduciary duty by the board of managers, and (c) violation of the General Business Law 349. The condominium board interposed an answer the following month. In addition to denying the central allegations of the complaint, the board raised the following affirmative defenses: (1) the complaint failed to state a cause of action, (2) the duty of repair falls to Teitelbaum, (3) a defense was founded upon documentary evidence, and (4) the statute of limitations. The complaint had been amended as of right previously.

A motion for leave to amend the complaint to increase the damage clause from $6,160 to $6,350 was granted. The court said that leave to amend a pleading was generally freely given unless prejudice or surprise to the opposing party was demonstrated. Since the change in the damage clause reflected the amount paid to the contractor and since the defendants were furnished with a copy of the invoice before the start of the action, the court said that there was no prejudice or surprise to the defendants. It accepted the board's amended response as the answer to the second amended verified complaint.

In 1984, Enid Teitelbaum purchased property known as 6 Hampton Way, Woodbury, NY. It was a condominium unit located in Woodbury Village Condominium II. On August 31, 1999, Mrs. Teitelbaum transferred ownership into the Enid L. Teitelbaum Trust, of which Mrs. Teitelbaum was the sole trustee. On August 27, 1997, Teitelbaum informed Total Community Management Corp. (TCM), the managing agent, that a crack had developed in the home. This had caused cracking and misleveling, the worst of which was in the kitchen. The board refused to repair or reimburse Teitelbaum for the cost of the repairs. The board stated that any soil or concrete repairs required to correct the cracking of the slab were the responsibility of Teitelbaum. On October 20, 1997, Teitelbaum again advised TCM of the condition. Teitelbaum requested an inspection by the board so that repairs could be made, as Teitelbaum maintained were required by the offering plan, declaration, and bylaws. The board responded that it was not responsible for the repairs.

In May 1999, Teitelbaum called in a licensed architect to inspect the premises. According to the architect's affidavit, his inspection revealed that the concrete slab was sloping down from the sides inward roughly five to six feet from the neighboring wall to the west. The architect concluded that there was a construction defect in the common area in the preparation of the land and installation of the slab, and in particular, in the failure to properly compact the soil prior to laying the foundation wall and pouring the cement slab, and in the failure to reinforce the cement slab with any type of steel mesh. Again, Teitelbaum demanded that the board make the necessary repairs. As they had done in the past, the board refused to make the repairs.

By March 2000, with the conditions worsening, Teitelbaum hired a contractor to make repairs to the kitchen and part of the dining room and hallway. When work began, it became apparent that there was a void ranging from six to fourteen feet beneath the concrete slab of Teitelbaum's home.

The void under the slab was filled in. The floor and surface flooring were replaced. The cost of the repairs was $6,350. Teitelbaum requested reimbursement from the board. Once again, the board refused. In a letter dated June 20, 2000, the board stated, "As a reminder, the homeowner is responsible for the lower surface of the concrete slab up to the outer surface of the ceiling sheet rock to the roof. The soil under the slab remains that of the condominium's responsibility." On June 28, 2000, the board advised Teitelbaum that "according to the prospectus the homeowner is [sic] responsible to repair/maintain from the bottom of the concrete slab of the floor to the exterior sheet rock of the ceiling."

In considering Teitelbaum's motion and the board's cross-motion for summary judgment, the court noted that summary judgment was drastic relief; it denies one party the opportunity to go to trial. Thus, summary judgment should only be granted where there are no material triable issues of fact. It said that the focus for the court was on issue-finding, not issue-determining. However, where appropriate, summary judgment should be granted by the court.

Teitelbaum asserted that the documentary evidence and, in particular, relevant portions of each of the offering plan, declaration and bylaws clearly stated that the condominium, board of managers, and TCM were obligated to make the repairs to common elements of the condominium. Teitelbaum declared that the common elements included the land below the home. Teitelbaum further asserted that the cracking and misleveling of the floor and damage stemming from it were caused by defects in the construction of the home and the land beneath Teitelbaum's home. In particular, Teitelbaum pointed to the six- to fourteen-foot void between the floor of the home and the subsoil as the reason for the cracking.

Since the cause of the problem was a common element of the condominium, Teitelbaum said that the board was obligated to repair the structurally defective common elements. Teitelbaum also alleged that the board had breached its fiduciary duty by refusing to repair the common element beneath Teitelbaum's home. Lastly, Teitelbaum claimed that the board had violated General Business Law Section 349 by misstating what Teitelbaum contended were the obligations of the defendants arising out of the offering plan, declaration, and bylaws. Teitelbaum declared that these misstatements "adversely affect consumers at large."

The board had steadfastly maintained that the area in need of repair was an irrevocably restricted common element and, as such, was the obligation of Teitelbaum to repair. The board asserted that it had relied upon the language of the declaration and bylaws. In his affidavit in support of the board's motion, Barry Bekoff, the president of the board of managers averred "the soil reference in the June 20, 2000 letter from Paccione was incorrect."

The court said that it must determine if a reading of the papers indicates which party was responsible for repairing a defect in the soil under Teitelbaum's home. According to the Declaration of the Woodbury Village Condominium II dated 1976, section (c) of the third article defined a home thusly:

"A 'Home' as hereinafter referred to shall be defined as follows: Each townhouse Home is measured horizontally from the exterior surface of the sheet rock of all opposite walls to the exterior surface of the sheet rock of all opposite walls and vertically from the lower surface of the concrete forming the first floor of the Home up to the exterior surface of the sheet rock forming the ceiling of the Home. Doors, windows and interior walls of Homes are part of the Home. The description of the Homes set forth herein pertains to the location of the walls, floors and ceilings of the Homes, as they are finally set forth in the building plans to be filed simultaneously with the recording of this Declaration."

The fifth article of the declaration entitled "Common Elements" stated: "The common elements of the Community will consist of all of the Community, except the Homes, including but without limitation outside walls and roofs of Homes, the land, buildings and improvements (other than the Homes) comprising the Community (including the land under the Homes and under the improvements), attics and basements irrevocably restricted in use to certain Home Owners, all utility or other pipes and material located outside of the Homes, the parking areas for cars, grass areas and sidewalks."

The declaration stated unequivocally that the common elements of the community would consist of all of the community except the homes.

The fifth article continued to further classify components of the common elements. The declaration stated under a paragraph titled "IRREVOCABLY RESTRICTED AREAS":

"Certain portions of the common elements are irrevocably restricted in use to specified Home Owners, subject to the right of the Board of Managers to enter upon any restricted area for maintenance, repair or improvement of a Home or common element and subject to the rules of the Board of Managers. Any portion of the common elements which is not restricted in use may be used by any Home Owner. The common elements are not subject to partition nor are they severable from the Homes except in accordance with the Real Property Law. Following are detailed descriptions of the irrevocably restricted common elements.

"The Land which is located directly beneath each Home is restricted in use to the Owner of such Home." Responsibility for repairs and maintenance was expressed in Article 3, Section 6 of the bylaws: "Repairs and Maintenance. All maintenance, repairs and replacement to the common elements of the property including but not limited to exterior walls, roof and roof members as well as all maintenance, repairs and replacements to any pipes, wires, conduits and public utility lines, or any portion of which is located in one Home and services another Home or more than one Home or so much of any pipes, wires, conduits and public utility lines as are located in the common elements but serve one or more Homes and all maintenance shall be made by the Board of Managers and the cost thereof shall be a common expense."

The section also stated: "All irrevocably restricted common elements shall be maintained and repaired by the Home Owner to whom such common element is restricted in use."

In the court's view, a reading of the declaration and bylaws indicated that the land directly beneath the Teitelbaums' house was within the common elements and, specifically, an irrevocably restricted area. As such, it was Teitelbaum's responsibility to repair the disputed area. Furthermore, the court had not found, nor had Teitelbaum pointed out, any provision in the declaration or the bylaws which determined the responsibility for making repairs based on the nature of the repair, whether it was structural or non-structural.

In light of the above, the court granted the board's cross-motion and denied Teitelbaum's motion. However, the court denied the board's request for legal fees. It said that attorney's fees were incidents of litigation and the prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, by statute, or court rule. No showing was made to support a legitimate claim for attorney's fees.

Comment: The result in this case is somewhat surprising. The "irrevocably restricted" common element is normally called a "limited" common element meaning that its use is restricted to a single unit, although traditionally the cost of maintenance of the space is a common expense. Here, the cost of maintenance was held to be the responsibility of the unit owner. The result suggests the importance of reading the condominium documents carefully and realizing that specific provisions govern which may produce a result at odds with expectations.